EVHH3HKHlCOURTOFKARNATAKAATBANGALORE
DATED THIS THE 3"' DAY OF DECEMBER 2010
BEFORE
THE HoN's:,E MRJUSTICE ANAND ~ V.
Regular Second Appeal No. 1843 9; A " A
Between:
Sri Faras Hussain
Aged about 50 years
S / 0 Abdul Kareem
R/0 Shiroor Village A . _
& Post, Kundapura 'uk 5 V ~
Udupi District " D' :..Appellant
[By Sri I-i.Jaya.k;a1fa
1. Sri Maosa Yustif' _ A
Aged about 30v-.years~~--"
/to late Moosa Budan
1 / 103A**~' "
it ' E. Q' Shivrooré Village
A V _ KL1r1clapu.ra*_Taluk
. " L}dupi_'v_vDi'strict
2.E1Ve[o('>v.:s'a' Akela
Aged 1' about 34 years
A' *---Su/0 late Moosa Budan
* R/0 No.1/103A
Shiroor Village
Kundapura Taluk
Udupi District
3. Moosa Nazima
Aged about 32 years
D/0 late Moosa Budan
R/0 No.1/103A
Shiroor Village
5
Kundapura Taluk
Udupi District
4. Moosa Shahdab
Aged about 30 years
S/o late Moosa Budan
R/0 No.1/103A
Shiroor Village
Kundapura Taluk
Udupi District 1
5. Moosa Dawood
Aged about 28 years
S/0 late Moosa Budan
R/0 No.1/103A
Shiroor Village ._ %
Kundapura Taluk H _ _
Udupi District _ ' Ii,---fRespondents
[By for Resp0ndent--2 and
Respizvindenlt'-53, Respor1d.e11ts~~.1, 4» and 5 are served)
This regru.larfsec'o_ri'd 'appeal is filed under Section
100 CPC._agai1_1st_ " judgrrient and decree dt.
10.02.2009 passed in R.A.No.O9/2004 on the file of the
Ci_vi'l.J1_ic'.ge [Sr';'Dn___._l,» Kundapura. dismissing the appeal
and etc;
Tlfiisl ah-'3--eal comiri f orifor admission this da , the
. .. E 1.
'Court deliV_er:'ed the following:
JUDGMENT
Heard the learned counsel for the appellant. The
lwappellarit, was the defendant. before the trial Court. The
V’ “original plaintiff is no more. It was his case, that he
had eIicroa(:hed on the property to the extent of 14
cents of land in Sy.No.3’71/1A of Shiroor Village
belonging to the government, about 38 years prior;
suit and had enclosed the same with a coniipourfii’
and had constructed a house apartfroin pVl1’aer7ii:iin’g,_trees if
and digging a well and constru’Cted_Alo’ther–
buildings and it was the the p1.avintiff.””‘tl1at he”?
had continued in «this. faniily ever
since. Further, the an application for
grant of the was in turn
granted But, however, the
if;-llvwpossession of 14 cents,
continued” to entire extent. It was the
furth-erg case .oAf”th”e plaintiff, that the defendant who was
notVliriflfoceupatiolnlllof any part of the suit property,
interfere with the plaintiffs possession and
tried up construction. In that background, the
suit was filed seeking to restrain the defendant-
‘ “‘._appel1ant. herein, from putting up any such construction
it ” -“and there was an order of temporary injunction granted
by the trial court in respect of the same. It was the
plaintiff’ s case that the defendant. had forcibly
8
encroached on the suit property and had constructed a
temporary shed. The plaintiff accordingly, had pleaded
the subsequent events of the defendant having
eneroached on the suit property. It
background, that the trial was conducted
court decreed the suit. Sincethe”dc_ei7endaArit«._did:’not
seriously challenge or defend the..As’uit, thong}:
entered appearance and alsovfiled his “written astaternent
denying the plaint ;;1a:mifig’ that the
defendant was in possessiVonV__Vof» t}’ievv.’su_’it_’property to the
extent thatv;}as_a14leged.:–_as been encroached, the
trial court”having the suit, the same was carried
in appeal uar1.d’ttie ‘appellant made a futile attempt to
teiidieitfieiriderlce hletore the lower appellate court. The
court, however, rejected the application
seeking «produce evidence and affirmed the finding of
thee trial court. It is that which is the subject matter of
“challenge in the present appeal.
2. The learned counsel for the appellant has
framed several substgitiai questions of law. While
candidly admitting, that there was a lapse on the part of
the defendantwappellant in not having tendered”
in support of the pleadings and hence
that having regard to the
parties, it is personal aniInosity”«Vvv:h_i;ch led:
rancour and therefore, out”of””sheer ‘spite the suit V
was filed to deprivethe poss’e.sjs’iVo”n_Aofl ‘appellant-
defendant and thereforelr’ ought to be
granted to and in the face
of the has also applied
for to the extent of 10
cents aiidthe’ consideration, it would be
in the interest of jlusticel to consider the questions of law
3,,” liovvever, having regard to the above facts and
circumstances, since the defendantwappellantv does not
title to the property, but only seeks to assert
“-possession over the suit property in the face of findings
of fact by the courts below and in the absence of any
evidence tendered by the @pel1ar1t, it would be futile to
relegate the parties to trial yet again, at this point of
time. If the appellant should succeed in obtaininggssant
of the land, to whatever extent _
independently enabled to cqrne into”–.:Qcctip–atien”
legitimately and that being s0,v’uth€jre..
interference by this Court ‘1’n__ this»nr’oceevtlAi§<§_gs..Vat3
stage. There is no__ substantial'vquesti0nV_H0f_Elaw that
arises for consideratitin. T «Thee iappeal 'rejected.